By: Zachary Smith
Zachary Smith, 2L, is an intern at Legal Resources Centre in Accra, Ghana for the Summer of 2015 as part of Washington University School of Law’s Global Public Interest Law Internships.
As one of the most developed democratic nations in Africa, Ghana boasts one of the most rapidly growing economies in the world and is home to some of the happiest people in Africa. But all that glitters in the Gold Coast is certainly not gold, especially for the people of the Ghanaian LGBTQ community. Societal, governmental and police abuses, discrimination and acts of violence against the LGBTQ community are well documented. For many years, the LGBTQ community in Ghana has fought, often silently and with the help of various NGO’s, to ensure that they are afforded the same rights as everyone else in Ghana. Unfortunately, the immense anti-homosexuality culture that exists in Ghana has made this a one sided battle.
Under Chapter 6 of the Criminal Code, 1960, as amended by The Criminal Code (Amendment) Act of 2003, same-sex sexual activity among males in Ghana is illegal, although the law is far less clear regarding the status of same-sex sexual activity for females. While this law most certainly encompasses gay marriage, Chapter 6 also denies gays and lesbians the right to donate blood, jointly adopt, and even participate in consensual sex. The laws regarding gay rights are very clear and strict in Ghana, with the maximum penalty for consensual same-sex activity between two men being twenty-five years in prison.
While Chapter 6 is unduly harsh for members of the LGBTQ community, many of the leaders and politicians in Ghana are even harsher. Former Information Minister Kwamena Bartels said in 2006 that his “Government does not condone any such activity [homosexuality] which violently offends the culture, morality and heritage of the entire people of Ghana.” Former President of Ghana, John Ata Mills, was once quoted as saying, “I as President of this Nation will never initiate or support any attempt to legalize homosexuality in Ghana.” It’s certainly easy to fault Former President Mills for his archaic views regarding gay rights, but briefly consider his dilemma. Speaking with some of my colleagues at the Legal Resources Centre in Accra, it seems that the majority of the people of Ghana do not support a change to the current laws regarding gay rights. Assuming, arguendo, that Former President Mills did support the advancement of gay rights, it would be an exorbitantly difficult challenge to alter the laws, given the strong feelings held by the many of his people.
But why such strong contempt for gay rights amongst many Ghanaians? The deeply religious nature of Ghanaian culture has heavily influenced the denial of basic human rights for the LGBTQ community. According to the CIA World Factbook data Christians make up 71.2% of all Ghanaians, while Muslims make up 17.6%. Although certainly not all, many Muslims and Christians in Ghana view gay rights negatively, claiming it conflicts with their religions’ moral teachings. Religion continues to foster the belief that supporting gay rights is taboo, even amongst the most educated people that I have encountered during my time in Ghana.
The Supreme Court
Yet the 1992 Constitution is very clear. Chapter 5, Section 17(2) states, “A person shall not be discriminated against on grounds of gender, race, color, ethnic origin, religion, creed or economic or social status.” Discrimination laws written with this language around the world have come to understand social status to encompass sexual orientation.[1] Indeed, the UNHCR published a Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, in which they stated “Claims relating to sexual orientation and gender identity are primarily recognized under the 1951 [Refugee] Convention ground of membership of a particular social group…. This has been affirmed by courts and tribunals in various jurisdictions, including Australia, Canada, France, Germany, New Zealand, Sweden, the United Kingdom and the United States.” According to Amnesty International, there is little doubt that the denial of personal liberty to a targeted sect of the population, such as the LGBTQ community, is discriminatory and a clear violation of human rights.
A 2012 Universal Periodic Review by the United Nations Human Rights Committee raised concerns about the status of LGBTQ rights in Ghana and made many recommendations for their improvement, none of which were supported by Ghana.
Moving forward, gay rights advocates in Ghana must continue to battle for equal treatment under the law. Unfortunately, that struggle is likely to continue. There is hope, however. According to some of the High Court and District Court judges that I spoke with, Ghana tends to follow American and British law for guidance on how to structure their laws. The recent American Supreme Court decision in Obergefell v. Hodges was a great step taken towards the advancement of gay rights, and one hopes that Ghanaian courts will reconsider their position after such a landmark case. And there is a global trend towards greater tolerance and equality. Ireland became the first country to legalize same-sex marriage by popular vote, with an overwhelming 62% of the electorate. The perception around the world is changing and Ghana is not immune to this change. Ghana is a country of love and peace. Both will prevail as time progresses.
[1] See e.g., Peter C. Godfrey, Defining the Social Group in Asylum Proceedings: The Expansion of the Social Group to Include a Broader Class of, 3 J.L. & Pol’y 257 (1994).